How the Fourth Circuit Decides Whether to Award Oral Argument

Depressing fact of the day: The Fourth Circuit hears oral argument in about 9% of the roughly 5,000 cases it considers each year.

For context, here’s the 2012 acceptance rate of each Ivy League school, according to Google:

  • Harvard: 5.9%
  • Yale: 6.8%
  • Columbia: 7.4%
  • Princeton: 8.5%
  • Brown: 9%
  • Dartmouth: 9.8%
  • Penn: 12.3%
  • Cornell: 16.2%

So basically, the chance of the Fourth Circuit granting oral argument in any given case is about as good as the chance of a mid-tier Ivy granting admission to any given applicant. Only the very best, cream-of-the-crop cases evidently merit that consideration.

But what does that mean? What metric does the court employ to decide which cases warrant argument?

Deena Jo Schneider has a terrific article in the current Appellate Issues that sheds some light on these questions.

Schneider moderated a panel on oral argument at the ABA’s mid year meeting. Her panelists included Roger Townsend, Justice Elizabeth Lang-Miers of the Texas Fifth District Court of Appeals, and Judge Andre Davis of our very own United States Court of Appeals for the Fourth Circuit. For your benefit, I have summarized some highlights from Schneider’s article below.

As if she were reading my mind, Schneider asked Judge Davis what determines whether a case receives oral argument. He responded that the Fourth Circuit hears far fewer cases today than it did when he clerked there. When Judge Davis joined the court, he thought that he would place more cases on the oral argument docket. But now, three years into his term, he’s concluded that the court effectively screens cases for oral argument, generally picking only those cases where the benefit of argument exceeds its cost.

Judge Davis explained that while counsel may request or disclaim argument, the ultimate decision rests with the court. Any judge on a panel can put a case on the oral argument calendar. The other judges then decide whether they want to remain on the panel. Staff attorneys work up the cases that don’t make the oral-argument cut.

Schneider followed up, asking Judge Davis what factors play into the decision to grant oral argument. He responded:

  • Cost. The court’s overall reversal rate in civil cases is in the low single digits. Judges are reluctant to impose the financial cost and stress of oral argument on parties when the outcome of a case seems clear.
  • Stakes. The single-judge opt-out process sometimes allows argument to be granted even in relatively clear-cut cases when the stakes are high, or when the parties are unlikely to be concerned with costs. Argument is also generally granted when a case involves a serious question of criminal or constitutional law.
  • Gap-Filling. The court is putting more cases on the calendar to fill gaps in Fourth-Circuit jurisprudence that result from the years during which the court was short-staffed.

With regard to his personal practice, Judge Davis said that he votes to hear oral argument “when there is a plausible argument that what the district court did constitutes reversible error.”

While that “reversible error” standard for granting oral argument isn’t terribly helpful, the rest of this information is useful. The federal rules allow any party to file a statement as to why oral argument should or should not be permitted. Fed. R. App. P. 34(a). There’s no reason not to include such a statement in your brief; it doesn’t count toward the word limit, Rule 32(a)(7)(B)(iii), and may help sway the court–especially if it is targeted to factors such as the importance of the legal issues and any evident gaps in Fourth Circuit jurisprudence.

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These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. They do not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.